Williams v. State

V. PROPRIETY THE OF TRIAL The court set-off; did not err in awarding a

COURTS AWARD OF SET-OFF however, precise amount of set-off should be determined on remand.

MeClaskey purchased the Hudson property through promissory note and BAKER, JJ., RUCKER and concur. mortgage. McClaskey claim, After filed his Hudson filed a cross-claim for the amount

due on the note and a if McClaskey set-off damages.

were awarded The trial court

found that Hudson was entitled to recover on set-off of the note mortgage.

McClaskey contends the set-off improper is presented

because there was. no evidence trial to establish that there was a balance WILLIAMS, Clifford Glenn Barker and due. Whyte Rupert Williams, Michael aka Appellants-Defendants,

The record MceClaskey shows that failed to file an answer to Hudson's cross- response cross-claim, claim. A to a like an Indiana, Appellee-Plaintiff. STATE of counterclaim, answer to a required under 7(A)(8); our trial rules. See Ind.Trial Rule No. 49A05-9310-PC-391. Corp. Commercial Credit v. Miller Indiana, Appeals Court of (hold Ind.App. Fifth District. ing that an answer to a counterclaim is re quired 7(A)(@2)). under Ind.Trial Rule Oct. 1994. effect of deny failure to answer and is that pleading averments of the will be deemed Transfer Denied Jan. 1995. 8(D); admitted. See Ind.Trial Rule Com mercial, Accordingly, 280 N.E.2d at 860.

trial finding court's of set-off is not errone

ous. On remand the trial court should re

ceive evidence on the exact amount of the balance which remains due should set-off

that amount from damages awarded to

MceClaskey.

CONCLUSION

The trial court did not err in allowing testify expert.

Shaffer as Further-

more, findings its regarding the value of the

diminution in property value of caused supported by incumbrance were evidence

and were clearly erroneous.

The trial court was correct in awarding MeClaskey; however,

costs to the amount of

costs awarded improper. was We remand

for proper determination of the allocation

of costs.

The court compounding erred in interest

on the damages award of and costs. We

remand computation simple interest. Ortiz, Indianapolis, appellants.

A. Luis Carter, Gen., Dreyer, Atty. Mary Pamela Atty. Gen., appellee. Deputy Indianapolis, for SHARPNACK, Judge. Chief Williams, Barker, and Mi- Clifford Glen Whyte appeal peti- chael the denial of their post-conviction tions for relief. We affirm. Williams, Barker, Whyte (collectively, petitioners) present the three issues for our review, which we consolidate and restate as petitioners

1. whether the submitted guilty pleas knowingly, intelligently, voluntarily when the trial court did not plea proceeding advise them deportation; petitioners 2. whether received the effective assistance of counsel. judgment favorable to the

The facts most petitioners, are as follows. The noncitizens States, following were arrested of the United by police large-scale investigation into a oper- cocaine distribution network Jamaican ating Indianapolis metropolitan in the area. guilty plea hearing on At 23, 1991, petitioners pleaded each April dealing in conspiracy to commit cocaine, felony. to their a class A Pursuant May separate plea agreements, on twenty years Williams received sentence years years suspended and five with fifteen executed, twenty- Whyte was sentenced to years imprisonment, and Barker was five twenty years imprisonment. sentenced to hearing, At Barker and attorney Whyte represented by Lonnie were Al- Randolph, Thomas Williams sip. petitioner each The court advised pleading guilty and charge to which he was individually questioned petitioner con each given guilty plea was cerning whether voluntarily, as knowingly, intelligently, and 35-85-1-2(a) and the required by Ind.Code Supreme holding in White v. Indiana Court's Ind., 497 N.E.2d 893. deportationconse court did not mention guilty plea, quences of the nor did or their counsel raise the matter tation deportation guilty plea hearing. disagree. convictions, deportation As a result of their largely Our federal courts have considered proceedings brought against peti- consequence to be a "collateral" Immigration guilty plea. tioners the United States United States v. Del Rosario ( D.C.Cir.1990), 55, den., 902 F.2d cert. 498 petitioners and Naturalization The Service. 942, 352, 316; 111 112 U.S. S.Ct. LEd.2d deported complet- were ordered to be after ing imprisonment. Cir.1976), their sentences of v. Fruchtman Kenton 531 den., 946, 895, F.2d cert. 429 U.S. 97 S.Ct. 29, 1992, Whyte On Barker October and 256, 178; 50 L.Ed.2d Michel v. United States petitions post-conviction filed for relief. (2d Cir.1974), 507 461. F.2d Collateral con petition post-conviction Williams filed his for sequences attending guilty plea in some 4, relief on December 1992. Post-conviction may cireumstances be far less than onerous 21, 1998, hearings May were held on and Rosario, deportation. Del su 25, judge June 1998. The denied each of the pra, consequences "may such collateral in petitions. employment, clude the loss of civil service of petitioner bears the burden of abroad, right freely to vote and to travel proof petition post-conviction in a relief. license, right and of the driver's (1981), Ind., Popplewell v. State 428 N.E.2d right possess firearms." 902 F.2d at 59 15, post-conviction 16. The court is the trier (citations omitted). Indiana, however, In judge weight of fact and the sole of the and consequences" term ap "collateral has been credibility of the evidence. Id. Where the plied guilty plea in the context to certain petitioner appeals post-convic the denial of a "subsequent negative consequences of an petition, tion appeals nega relief he from a conviction," (1990), earlier Pike v. State Ind. cases, judgment. only tive In such it is App., 557 N.E.2d vacated on other where the evidence is without conflict and grounds, 569 N.E.2d 650. conclusion, leads to but one and the court pleads have often held that "[We one who conclusion, opposite below has reached the guilty [by need not be advised the court] that post- we will disturb the decision of the might the conviction have adverse but being contrary conviction court as to law. consequences. future collateral See Ar Id. (1989) v. 2 Dist.Ind.App., nold 589 969, denied, N.E.2d trans. and cases cited I holdings therein. unquestionably Such are We first ar address premised upon the rationale that im gument could not have submitted conviction is the lone concern and mediate guilty pleas knowingly, intelligently, contemplated future or but uncertain con voluntarily and when the trial court did not sequences need not be considered or made plea proceeding advise them subject of discussion or advisement. Such deportation. considerations are irrelevant to the validi ty, particular vel non of the conviction in statute, guilty plea Indiana's LC. 35-85- dispute." 1-2, sets forth a series determinations that Id., accepting a court must make before 557 N.E.2d at 3. Such collateral conse- plea, including quences the determination that imposi- have been as severe as the accused of certain resulting has been informed consti tion of consecutive sentences from convictions, rights (1987), tutional Boykin prior Stockey as mandated v. State Alabama, 238, 1709, Ind., 798; pa- 89 S.Ct. 23 the revocation of role, (1989), Ind.App., (1969), Jones v. State 586 possible L.Ed.2d 274 and crimi denied; penalties resulting nal reh'g possibili- from the N.E.2d and the ty parole concede the court ad the defendant's board could rights require part vised them of the enumerated in him to paroled this serve statute, argue process requires commencing but that due sentence before his sentence offense, depor- the court to inform noncitizens of the the current Morlan v. State Arnold, Ind., supra. prejudice as a result. Strickland v. Wash N.E.2d ington, 466 U.S. cases, In above Indiana the courts all of the (1984). stated appeal that the trial court was not L.Ed.2d 674 This Court has on found judicial serutiny perfor required accused the collater of counsel's to advise the Jones, highly plea. supra, In mance is deferential and should not al of his through distortions of hind Judge "[the Miller stated that revocation be exercised (or probation) sight. presumed competent, a collateral conse parole Counsel is quence appellant strong and as such a court must convincing presump duty to inform the defendant of evidence to rebut has no (1987), Ind., consequences he face as a result of such tion. Duncan v. State N.E.2d 1252." 536 N.E.2d at 1058. Mor revocation." lon, supra, Supreme held the Indiana Court (1990), Ind., 759, v. Clark pa the defendant's the presumption com 762. To overcome the of imposition could result in the of rolee status petency, identify the act the defendant must a consecutive sentence was a collateral conse and the court must determine or omission quence plea, and thus the of the defendant's from all the cireumstances whether the act or required was not to advise the trial court range profession the omission was outside of it. 499 N.E.2d at 1086. defendant ally competent Maez v. State assistance. (1988), responsibilities a trial in ac- The court Ind.App., 530 N.E.2d cepting guilty plea great a are set forth with denied. trans. specificity in our statutes and case law. See applicable The test was found Strickland White, (1988), supra, and Herman v. State plea in guilty to the situation Hill v. Lock Ind., impose not 526 N.E.2d 1183. hart, 52, 366, L.Ed.2d 474 U.S. 88 duty inquir- upon the courts the additional (1985). There, set forth the 208 Court citizenship immigration ing into the and sta- relevant standard: tus of criminal defendants. here, "Where, represent a as defendant case, present the record shows that during plea process ed counsel and great lengths the trial court went to to estab- counsel, plea upon the advice of enters his petitioners' guilty pleas were lish that plea depends the voluntariness of the on knowingly, voluntarily, intelligent and made counsel's advice 'was within the whether accepting ly. trial court did not err in range competence of attor demanded pleas. petitioner's guilty neys in criminal McMann v. Rich cases' ardson, 1441, 759, 771 S.Ct. [90 397 U.S.

II (1970). 1449, ex 25 L.Ed.2d As we 763] Henderson, they argue that 411 plained also U.S. Tollett (1973), 1602, 235] 258 36 L.Ed.2d [93 S.Ct. effective assistance of counsel did not receive attorneys upon not them pleads guilty their did advise who because a defendant deportation consequences 'may only of the federal of counsel attack the vol advice ques guilty felony. intelligent a This is a character of the pleading untary to and impression by showing in Indiana. the advice he tion of first not within the standards set received was governing of review Our standard McMann.) Id., 267, at 93 S.Ct. at forth adequacy legal represen challenges to the 1608." Supreme by the Indiana tation was stated 56-57, Hill, 106 S.Ct. at 369. as follows: Court case, petitioners con- In the Supreme has States Court "The United deporta- they unaware that tend that two-part which a standard established guilty pleas, that from their tion would result ineffective assistance of counsel claims of of this attorneys failed to advise them Preliminarily, appellant are evaluated. fact, deporta- that had known perfor- showing must make consequence of their possible tion was his trial counsel was deficient. mance of pleaded not they would have guilty pleas, that he suffered Appellant then must show (1948), guilty gone addressing trial.1 consequence undoubtedly Before is a claims, however, specific decision-making process we would enter into the must determine whether a claim of considering plea ineffec of a bargain. defendant premised tive assistance of counsel can be on federal courts have consid the failure to advise a defendant of the de ered to be a collateral conse portation consequence guilty plea. aof quence guilty plea, principle and this has applied in authority places challenge No been the context of a exists which specific duty upon representa the effectiveness of the lawyers eriminal defense accused's tion. federal immigration Indiana to discuss the Several courts have determined conse quences that the failure to inform an of a conviction or accused of the are, however, likely deportation attorneys Indiana gener under competence plea al diligence, among duties of does constitute ineffective assistance others, Rosario, pursuant supra; of counsel. Del to the Rules of Professional Santos v. (7th Cir.1989), den., by Judge Conduct. As noted Kolb 880 F.2d cert. Staton in Ind.App., Smith v. State U.S. S.Ct. 107 L.Ed.2d N.E.2d 956; demied, Cir.1989), reh'g George trans. denied: United States v. 333; 869 F.2d United States v. Yearwood "Indiana Rule of Professional Conduct (4th Cir.1988), 6; 863 F.2d United States v. 14(b) lawyer 'A explain states: shall a (11th Cir.1985), Campbell 778 F.2d 764. As reasonably necessary matter to the extent by George: in noted the court permit to the client to make informed deci- regarding representation.' sions knowledge consequences "[Alctual which provides comment part: to RPC 1.4 in guilty plea are collateral to the is not a prerequisite [The client should have sufficient entry infor- to the knowing of a participate intelligently mation to intelligent plea. in A deportation proceeding de- concerning objectives cisions proceeding may is a civil which result from representation by prosecution, and the means which a criminal part but is not a pursued, are to be to the extent the or enmeshed in the proceeding. criminal willing client is and able to do so. For prosecution. It is collateral to the criminal example, lawyer negotiating a on behalf While the Sixth Amendment assures an provide of a client should with client accused of effective assistance of in counsel matter, prosecutions' facts relevant to the inform the 'criminal this assurance client of communications from another aspects does not extend to collateral party steps prosecution." and take other reasonable permit the client to make a decision George, (emphasis origi- 869 F.2d at 337 in regarding a serious offer from another nal). party.['] Indiana, as discussed a court's Implicit in RPC 1.4 and its comment is failure to advise an accused of the collateral the recognition that a client makes deci- consequences guilty plea does not invali- regarding representation sions his based plea. date the No Indiana case has ad- upon the which information he receives question dressed the of whether the failure of attorney regarding legal from his con- attorney an concerning to advise a client sequences of the various choices which he consequences such collateral constitutes inef- may make." that, representation. fective We believe un- Id. at deportation, 1117. The cireumstances, der certain it does. equivalent which has been termed "the banishment," Phelan, Fong court, Haw Tan v. responsibili- 333 Unlike the trial whose 6, 10, 374, 376, U.S. 68 S.Ct. 92 L.Ed. 433 ties in accepting guilty plea a are set forth 1990, however, argue attorneys Immigration 1. Petitioners also that their Act of effective No- 29, 1990, failing judicial request ineffective for longer to recom- vember and the JRAD was no (JRAD) petitioners' guilty against available on date of the mendation deportation guilty plea hearing pursuant hearings. plea argument to 8 U.S.C. 1251(b). § provision by repealed This was therefore without merit. determining great specificity, with is under the effective assistance of coun- sel, general duty "guiding we must conclude that this poor hand" would be a one indeed if it plea did "to ascertain his client's voluntarily knowingly, point out to the is entered accused is, upon consequences advice which enables the accused aof informed, intelligent, to make an con- in our decision in Moran plead guilty scious choice whether or 1231, Ind.App., not." Constitution'operates pro- federal Cir., 1976), "[t]he Edwards v. Estelle 541 F.2d denied, protection vide at least a minimal to citi- cert. 430 U.S. zens no matter in what [and 52 L.Ed.2d 367. We do not believe noncitizens] However, by state the issues arise. it attorney's that an to a duties client are limit expansiveness no means limits by bright ed line drawn between the direct rights provided to particular those aof and those con state, may freely provide greater which sequences considered collateral. protection liberty of individual than the Deportation may penalty be a more severe requires." federal Constitution prison Deportation may than a sentence. being result families divided or in "loss of rely upon Id. at 1286. therefore Art. life; property or or of all that makes life Constitution, pro- 13 of the Indiana White, Ng Fung worthwhile." Ho v. right that an vides accused has the "to be 276, 284, 492, 495, U.S. S.Ct. 66 L.Ed. 938 counsel," deviating heard himself and (1922). savage penal It "a has been called precedent from the set the federal courts ty," "a life sentence of exile." Jordan v. De in our and other Seventh Cireuit circuits. It 223, 243, George, S.Ct. consequence firm is our belief that (1951) (Jackson, J., dissenting). 95 L.Ed. 886 deportation, whether labelled collateral or not, that it sufficient seriousness consti- recognize petitioners that We tutes ineffective assistance for an to dealing not have could been unaware fail to advise noncitizen defendant of the cocaine is a criminal offense in the United deportation consequences States and that a conviction for such would consequences, including have dire an effect We must therefore determine whether the immigration particularly on status. This is attorneys present in the case met this obli- Whyte, in true the cases of Barker and who gation. noted each As Nonetheless, country illegally. entered this attorneys testified that their failed to advise States, all aliens in the United concerning deportation. them attor- legally illegally, whether here or are entitled however, neys, both testified that the immi- process. to due The Sixth Amendment of gration consequences guilty pleas and Art. United States discussed with their clients. Constitution guarantee 13 of the Indiana Constitution following during was elicited the di- any right stage to counsel at critical of Lonnie attor- Randolph, rect examination prosecution "might where counsel's absence ney Whyte for and Barker: derogate right accused's to a fair from the "Q. you any immigration practice Do law? (1986), Ind., trial." Koehler v. State (quoting N.E.2d United States v. immigration A. I've handled cases before. Wade, 1926,1932, Q. immigration You handled cases? (1967)). purpose "The 18 LEd.2d five, maybe, Approximately, A. four or guarantee represen the Sixth Amendment maybe. an from protect tation is to accused convie you acquainted immigration with Are resulting ignorance own of his tion from his any stating that individual con- laws legal rights and to assure and constitutional drug subject victed of a offense is to every step guiding him the hand of counsel at deportation? proceeding." After an examina Id. correct, I'm aware of that. set forth above for That's tion of the standards Q. you And did make the defendant here A. Yes. that?

aware of Q. Okay. you And can tell me what it is pretty A. I'm I sure did. you him? told Q. sure, Okay. you say, pretty When do Well, A. actually I believe he you you know for sure whether did or brought just up. gen- it discussed not? erally the fact Immigration say A. I pretty repre- I'm I sure because Service would be if interested he ob- a, sented Mr. Barrett [a co-defendant at tained if a conviction was obtained subsequent immigration in a him, trial]l against and it could affect his case as direct result of this matter. status the United But States. And I also had contact with the immi- that's about all that was ever talked gration prior authorities down here about. disposition of this case down here. Q. Okay. you really So didn't check and Q. you Did advise the defendants was, fact, see whether or not he pleading guilty they'll them serve alien, illegal or an alien that was sub- jail their time in and then after that ject deportation? go through depor- would have to personally? A. IDid proceedings? tation Q. Yes. A. Yes. A. No. Q. you they may Did advise them that Q. Okay. And other than that conversa- hearing have in the meantime as to tion, nothing was done to advise him deportation? of, of his A. Yes. plea? Q. you Have handled Well, we, A. we had the conversation a hearings your on own on some other couple, fact, a few times. I had it individuals? wife, with lady his or his friend at that A. Yes." time, think, and I I believe the Court's Record, p. Alsip, attorney 46-47. Thomas file will petition show that I filed a Williams, for Clifford testified as follows: him to be allowed to be married in the "Q. Now, you practice do immigration County Marion Jail while he was in- law? carcerated, I purpose believe the A. for that immigration No. was to deflect the problem. Q. Okay. you acquainted Are with the Immigration's Q. procedures deporta- Okay. you of But did check and see tion? whether or not that would have deflect deportation problem? the [sic] A. No. A. No." Q. Okay. you Are acquainted with the requirements of what must be shown Record, p. 159-61. Where the evidence is in deportation, in a in fighting deporta- a conflict, our obliges standard of review us to by petitioner? tion an alien judgment resolve the conflict in favor of the Well, I'm, post-conviction A. of the lawyer. sup- testimony no. I'm a I court. This shows, then,

pose information, subject I up deportation could look the the of explicitly by was any immigra- Randolph but I've never discussed handled and his upon by Alsip tion clients and touched cases. and his client.

Q. course, During ... during the reviewing the the denial of your in, relief,

course of post-conviction involvement the may only we reverse trial, you did post-conviction time recall dis- court where the evidence cussing Mr. with Williams his conse- is without conflict and leads to but one con- quences clusion, deportation. and the court below has reached the supra. prosecutions," "criminal this opposite Popplewell, conclusion. assurance case, showing aspects not extend to collateral a sufficient was does put prosecution.'" and cita- made that the on notice [Footnote ... by attorneys regarding deportation omitted.] tions their consequences guilty pleas, and there- many consequences "There are collateral say fore we cannot that the evidence leads to which, prosecution a if criminal not by opposite a conclusion reached counsel, by disclosed nonetheless do not court below. involuntary plea guilty. result in an Consequently, we decline to hold as a Accordingly, judgment post-con- matter of law that failure to counsel's viction court is affirmed. immigration inform a client as to the AFFIRMED. consequences result from more, guilty plea, without is "outside RUCKER, J., concurs. range professionally competent wide HOFFMAN, J., [Citations omitted.] in result with assistance."" concurs opinion. # # u i

HOFFMAN, Judge, concurring. petitioner's The failure of counsel to in- immigration consequences form him of the agree I concur in the result. I do not guilty plea, of his however unfortunate it the failure to inform a criminal defendant of be, might simply deprive petition- does a civil as collat- er of the effective assistance of counsel consequence flowing eral from a criminal by guaranteed the Constitution." conviction constitutes ineffective assistance of agree I counsel. While do that Indiana can I Id. at 944-945. would conclude that protection provide greater choose to of indi- failure to inform non-citizen civil collat- liberty required by vidual than that the fed- guilty plea, to a eral without more, eral Constitution and this Court is not cannot form the basis for a claim of bound the federal decisions referred to ineffective assistance of counsel. majority, there is no indication that

Indiana has ever intended to make such an to advisement of collateral con-

extension as

sequences to a ._ analysis within Santos v. Kolb Cir.1989), F.2d is instructive: JOHNSON, Appellant-Plaintiff, Terri J. ease, "In a recent and similar we held it was not ineffective assistance of fail counsel for an to inform his ASSOCIATES, INC. and SCANDIA immigration consequences client Co., Management Oxford drug offense. conviction for United Appellees-Defendants. George, States v. 869 F.2d 333 Cir. No. 06A01-9310-CV-326. 1989), we stated: knowledge '[Aletual Indiana, Appeals of Court of collateral to the is which are First District. entry prerequisite not a to the 12, 1994. Oct. intelligent plea. depor- A knowing and proceeding proceeding a civil tation is Modifying Footnote and Otherwise Order prose- result from a criminal Denying Rehearing 1995. Jan. cution, part but is not a of or enmeshed It collat- proceeding. the criminal prosecution. criminal While eral to the an ac-

the Sixth Amendment assures of counsel in

cused of effective assistance

Case Details

Case Name: Williams v. State

Court Name: Indiana Court of Appeals

Date Published: Oct 11, 1994

Citation: 641 N.E.2d 44

Docket Number: 49A05-9310-PC-391

Court Abbreviation: Ind. Ct. App.